I have a request for NACIS 2013: Would anyone be willing to give a presentation on intellectual property law and what we, as mapmakers, need to know? I'm not organizing a session or anything; just something I'd like to see as an attendee. Obviously, intellectual property law varies by jurisdiction, but I expect focusing on US Law and general principles that are applied worldwide would make sense.
Over the years, I have picked up advice and done some reading on some of these issues, but I can't say as I feel 100% confident in this area. I am certainly not a lawyer, or otherwise an expert. I think it would be valuable to have a handy reference guide for mapmakers to navigate some of these issues. Whether or not someone gives a presentation, perhaps we could all contribute our knowledge (or ask our lawyer friends) and put something together.
Some questions related to the subject:
1) At what point does your creation become copyrighted?
2) Let's say I need to make a map of the borders of Poland in 1935. I find an atlas of European history, I scan a map which has the information I want, georeference it, and trace it the borders off of it. Is that permissible? What if I also trace the coastlines, cities, etc.? How much can I copy from this map on to mine?
3) If I take someone else's linework and trace it, as in #2 above, and then distribute a copy of that linework online for free, is that an infringement on their copyright?
4) Can someone own the copyright on a data set? If I were given a shapefile by a client, which contained the point locations of their various offices, is that a proprietary data set? Can I ever use that data set again for another map for another client without their permission (and here I mean legally -- it would certainly be polite and professional to ask permission, but is it strictly necessary?)
5) If a client pays you to make a map, who owns the copyright to that product?
I think I know the answers to most of these, but I'm not totally confident. So, I'll put these out here and you can all comment on them.
1) In the US, as soon as you make something, it's copyrighted. No need to register or fill out any forms or anything. Registering your copyright can be helpful if you're expecting to need to go to court at some point to defend it, but it's not required.
2) In US copyright law there's the idea vs. the expression. The idea – the concept – of what Poland looked like in 1935 isn't copyrightable. The expression of that idea – how you color and style the boundary line – is. That's the aesthetic and personal creative portion, and it would be an infringement for me to copy the whole map, then color everything the same, and use the same typefaces in the same spots, etc. But, I think this is also a bit fuzzy. The reality of geographic data can't be copyrighted, true, but isn't the way we generalize our linework a form of expression? The shape of Denmark is a geographic fact, but in different maps and at different scales, we all choose to draw our line paths in slightly different shapes. So, by tracing that, I might be tracing someone's expression. Especially if the linework is highly artistically stylized.
3) Granting that I might be stealing someone's expression, this still may be acceptable I think, under the doctrine of Fair Use. Fair Use is an exception to copyright infringement, and it's pretty much weighed on a case-by-case basis, but among other things, there are 4 factors that can be considered (17 USC § 107): the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
Grabbing someone's linework, either here or with question #2, does not generally have a negative effect on the map you're copying from. It doesn't lower its value, or stop people from wanting to buy that map (unless you're copying a whole bunch of it and selling your map as an alternative). Also, if you're not copying a lot, the third factor comes in to play (amount and substantiality of the portion used) in your favor.
4) I have no idea. I've had a client hand me data (a shapefile) and tell me it was proprietary (it was a list of lat/lon coordinates they'd copied out of a book) and that it was not to be used for any other projects, but I'm not sure if they could legally stop me from doing so. I don't intend to disrespect their wishes; just curious as to whether or not they actually can own intellectual property rights on the shapefile.
5) You do, usually, as long as you're an independent contractor and not an employee. If you're an employee, your employer is considered the "author" of the work and owns all copyright. But if you're an independent contractor, you own it, even if it was paid for by someone else. For your client to own the copyright, two things have to happen (17 U.S.C. § 101): 1) you'd have to sign an agreement allowing it, and 2) the thing you made for them would have to be "a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas." The word atlas is specifically mentioned in the law, but nothing is mentioned about single maps.
Ok, so that's what I think I know. I'd be interested to hear from people as to whether or not any of this is correct, and if anyone's got questions to add to this list that maybe we can all try to answer, that would be great! Hopefully we can pool our knowledge into a handy set of answers to common questions.